Tuesday, August 2, 2011

Construing consent: ICC amendments on the crime of aggression

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Drawing upon the legacy of the post-World War II Nuremberg and Tokyo Tribunal prosecutions of “crimes against the peace,” an historic consensus agreement was reached at the 2010 International Criminal Court Review Conference to adopt an amendment to the Rome Statute of the ICC that defines both the crime of aggression and conditions for the exercise of jurisdiction. (credit for photo of ICC headquarters at The Hague, Netherlands)In a recent IntLawGrrls post, Professor Beth Van Schaack raised two interesting questions:(1) Whether the nationals of states parties that do not ratify the amendments may be prosecuted if such individuals commit the crime of aggression on the territory of any state; and(2) Whether a prosecution for the crime of aggression may go forward when the crime is committed on the territory of a state party that has not ratified the aggression amendments.To start with, it is important to note that the questions posed:► Do not directly impact the United States – which as a non-state party to the Rome Statute will be completely excluded from aggression jurisdiction as to its nationals and crimes committed on its territory.► Do not challenge the fact that the jurisdictional regime to which ICC states parties agreed is a completely consensual one, at least as to potential aggressor states.States parties to the ICC have a choice whether or not to ratify the crime of aggression amendment adopted at the Kampala Review Conference. Only when there are 30 ratifications and an Assembly of States Parties vote of 2/3 or consensus – and, by terms of the amendment, no earlier than 2017 – will ICC jurisdiction over the crime of aggression commence.Beth’s questions are then implicated, namely: whether after 30 ratifications and the activation vote:(1) Will all states parties be subject to the exercise of ICC jurisdiction over the crime of aggression regarding their nationals and crimes committed in their territories absent exercise of an opt-out declaration? or(2) Will states parties continue to have to ratify the aggression amendment to be subject to ICC exercise of jurisdiction over the crime of aggression regarding their nationals and crimes committed in their territories?(In neither event would crimes committed by nationals of, or on the territory of, a non-state Party be covered.)Either way, the regime remains purely consensual vis-à-vis potential aggressor states, with slightly different mechanics – whether it is ratification or the non-exercise of an opt-out declaration that will trigger jurisdiction after 30 ratifications and the activation vote.In short, the questions posed in the earlier post could not have practical application for at least six years. Even then, they would only be directly relevant to states parties when a case is referred by a state party or by the ICC Prosecutor – but not by the Security Council. Because the United States is not a state party to the Rome Statute and sits as a permanent member on the Security Council – meaning it could veto any future aggression referrals – these amendments simply do not apply to the United States. (credit for 2007 map showing ICC states parties in the Americas in green, the United States, which signed but has not ratifed, in orange, and the few nonsignatory American states in grey)Beth's post is right that there are indeed two possible readings of the crime of aggression amendment’s text. But it is wrong on other counts. First, it disparages as “revisionist” a passive-consent interpretation that was in fact discussed in negotiations long before the Review Conference, and was thus hardly a post-Kampala development. Second, it fails to accurately describe that approach.

Passive-consent interpretationMany country delegations, including those intimately involved in the compromises that resulted in the final agreement at Kampala, appear to interpret that agreement as follows:► Article 5(2) of the 1998 Rome Statute mandated states parties to determine the conditions for the exercise of ICC jurisdiction vis-à-vis the crime of aggression. Adoption of such conditions occurred at the Kampala conference. There, an opt-out methodology was adopted, whereby a state party may choose to opt out of aggression jurisdiction.► The Review Conference Resolution also invoked Rome Statute Article 12(1), which provides that states parties have already accepted jurisdiction over the crime of aggression.► The implication of the use of the opt-out methodology and the invocation of Article 12(1) is this: After 30 ratifications and the activation vote are achieved, every state that has joined the ICC Statute will be subject to ICC jurisdiction aggression vis-à-vis its nationals or crimes occurring in its territory (except for crimes committed by a national of, or on the territory of, of a non-state party) – unless, that is, the state party has exercised an opt-out declaration. (This would apply to cases triggered by State Party referral or proprio motu initiation; any situation could be covered by Security Council referral.)Active-consent interpretationAnother construction is also being offered – the one advocated in Beth's earlier post. This approach does not appear to correspond with what was agreed on at the Review Conference.The second sentence of Article 121(5) of the Rome Statute states:

'In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.'

Drawing on this language, the active-consent interpretation would hold that once jurisdiction commences, the ICC could only exercise jurisdiction over the nationals of, or crimes committed in the territory of, a state party if the state party has ratified or accepted the amendment, at least if the state party is the alleged aggressor state.This alternative construction, however, does not consider that the second sentence of Article 121(5), quoted above, covers the exercise of jurisdiction.Pursuant to Article 5(2) of the Rome Statute, states parties were authorized to establish at Kampala conditions for the exercise of jurisdiction over the crime of aggression. This meant that the states parties could rely on Article 12(1), the acceptance-of-jurisdiction provision described above, and not on a literal reading of the second sentence of Article 121(5). This appears to have been what was done.It is important to note that states parties can avoid the issues altogether, by simply being clear and choosing a concrete path; for example, ratification without an opt-out declaration, ratification with an opt-out declaration, or exercise of an opt-out declaration without ratification.For states parties that do not choose any such clear path, these issues of construction may become ones for the ICC judges when they adjudicate an aggression case that implicates such a state party. In that event, the ICC judges will be perfectly capable of evaluating the amendment’s language and of selecting between the “active” and “passive” constructions.